Friday, January 22, 2010

The dissenting opinion to today's most troubling US Supreme Court decision is worth reading, especially as the majority's decision will strengthen the most destructive legal concept of the modern era: the fiction that corporations are persons.

Justice Stevens, in his dissenting opinion, explains (for the benefit of his conservative colleagues), precisely how how corporations differ from persons:

The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. Austin set forth some of the basic differences. Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets . . . that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.”494 U. S., at 658–659. Unlike voters in U. S. elections,corporations may be foreign controlled.70 Unlike other interest groups, business corporations have been “effectively delegated responsibility for ensuring society’s economic welfare”;71 they inescapably structure the life of every citizen. “ ‘[T]he resources in the treasury of a business corporation,’ ” furthermore, “ ‘are not an indication of popular support for the corporation’s political ideas.’ ” Id.,at 659 (quoting MCFL, 479 U. S., at 258). “ ‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’ ” 494 U. S., at 659 (quoting MCFL, 479 U. S., at 258).72

It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

These basic points help explain why corporate electioneering is not only more likely to impair compelling governmental interests, but also why restrictions on that electioneering are less likely to encroach upon First Amendment freedoms. One fundamental concern of the First Amendment is to “protec[t] the individual’s interest in self-expression.” Consolidated Edison Co. of N.Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 534, n. 2 (1980); see also Bellotti, 435 U. S., at 777, n. 12. Freedom of speech helps “make men free to develop their faculties,” Whitney v. California, 274 U. S. 357, 375 (1927)

Obvious stuff, when you think about it. I wrote up two other posts highlighting Justice Stevens dissenting remarks:

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*Opinion of STEVENS, J.SUPREME COURT OF THE UNITED STATES No. 08–205 CITIZENS UNITED, APPELLANT v. FEDERALELECTION COMMISSIONON APPEAL FROM THE UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA[January 21, 2010]JUSTICE STEVENS, with whom JUSTICE GINSBURG,JUSTICE BREYER, and JUSTICE SOTOMAYOR join, concurring in part and dissenting in part.